The U.S. Court of Appeals for the Second Circuit held that a conviction under New York law for sale of a controlled substance is categorically an illicit trafficking in a controlled substance type of aggravated felony even though the conviction merely involved an attempt to sell. Pascual v. Holder, No. 12-2798, slip op. (2nd Cir. July 9, 2013) (Jacobs, Kearse, and Carney, JJ.) (per curiam). This case involved an individual who was convicted of violating New York Penal Law § 220.39, sale of a controlled substance, and on that basis ordered removed by an IJ. The BIA affirmed. In an earlier [...]
NY app ct: Padilla prejudice inquiry considers defendant’s desire to remain in USA
A New York intermediate appellate court held that the prejudice inquiry performed as part of a Padilla claim must account for a noncitizen defendant’s desire to remain in the USA when determining whether it would have been rational to turn down a plea offer. People v. Picca, No. 2006-09056, 2010-10696, slip op. (N.Y. App. Div. June 6, 2012) (Skelos, Dickerson, Eng, and Sgroi, JJ.). Judge Skelos wrote the court’s decision. This case involved an LPR who was convicted of attempted criminal sale of a controlled substance in the third degree in 1997 and again in 2001. Picca, slip op. at 2-3. On [...]
NY Ct App: Can’t dismiss appeal solely b/c defendant was deported
New York’s highest court held that it is improper to dismiss a criminal appeal based solely on the fact that the appellant was deported while the appeal was pending. People v. Ventura, No. 160 & People v. Gardner, No. 161, slip op. (NY Ct. App. Oct. 25, 2011). Justice Jones wrote the majority opinion, joined by Justices Lippman, Ciparick, and Smith. Justice Read dissented in Ventura and concurred in Gardner; Read’s opinion was joined by Justices Pigott and Graffeo. These cases involve individuals who were convicted and filed timely appeals in the state intermediate court. While that [...]